Cleary v. Group Health Association

691 A.2d 148, 1997 D.C. App. LEXIS 45, 1997 WL 136986
CourtDistrict of Columbia Court of Appeals
DecidedMarch 27, 1997
Docket95-CV-1329
StatusPublished
Cited by17 cases

This text of 691 A.2d 148 (Cleary v. Group Health Association) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cleary v. Group Health Association, 691 A.2d 148, 1997 D.C. App. LEXIS 45, 1997 WL 136986 (D.C. 1997).

Opinion

KING, Associate Judge:

Daniel F. Cleary appeals the trial court’s grant of a directed verdict in favor of Group Health Association (“GHA”) entered at the close of all the evidence in Cleary’s medical malpractice action, and the trial court’s denial of Cleary’s motion for a new trial. Cleary contends that he was not required to present medical expert testimony that GHA physicians breached the standards of care, arguing that: (1) the principles of informed consent should apply to his claim that a GHA neurosurgeon conveyed inaccurate information to him about a relatively new treatment option, and (2) with respect to other GHA physicians, expert testimony was not necessary to show breach of a physician’s duty to be informed about treatment options, or to refer the patient to another physician, where the physicians were unaware of a particular treatment option. We hold that the trial court did not err in refusing to apply the principles of the informed consent doctrine to Cleary’s negligence claim arising from the neurosurgeon’s conveyance of allegedly inaccurate information to him, where the circumstantial predicate for that doctrine was not present because the physician was not proposing that the patient undergo a particular procedure or treatment. Therefore, since Cleary did not present expert testimony establishing that GHA breached the standard of care, we hold that the grant of a directed verdict in favor of GHA on this claim was proper. We also hold that because Cleary did not present expert testimony that other GHA doctors, in the circumstances of their contacts with Cleary, breached their duty to be informed of treatment options for his condition or to refer him to a physician who would be familiar with the options, the trial court did not err in directing a verdict in favor of GHA on that claim.

I.

Because the various contentions of the parties depend on an understanding of the nature of the injury involved and the special medical procedures potentially available for treating it, we begin with a discussion of both. Cleary suffered a severe brachial plexus avulsion (“BPA”) injury as a result of a 1978 motorcycle accident — almost all the nerves serving his arm were ripped out of the spinal cord, rendering his arm useless. In addition to the loss of sensory and motor function in his arm, the BPA injury left Cleary with a condition akin to phantom limb pain: he had no nerve sensation in his arm, yet he felt intense pain that seemed to come from his arm but probably emanated from the spine itself. Dr. Bruce Ammerman, a GHA neurosurgeon, treated Cleary for his BPA injury from the time of the accident until January of 1984. Over those six years, Dr.'Ammerman either provided, or referred Cleary for, numerous kinds of treatments designed to restore function to Cleary’s arm or to relieve his pain. None of the treatments were particularly successful. Cleary saw no GHA physicians from January 1984 until February 1987; from 1987 until 1990 Cleary saw two other GHA physicians a few times, but did not return to them for recommended follow-up visits. In 1990, after a friend informed him of someone who had undergone successful dorsal root entry zone (“DREZ”) surgery to relieve a similar pain problem, Cleary sought and received GHA approval to have the procedure done at Duke University Medical Center (“Duke”). The surgery succeeded in reducing his pain by at least eighty percent without producing any significant complications.

The DREZ procedure was developed in the late 1970’s and early 1980’s, primarily at Duke. It is an arguably experimental major surgical procedure in which neurosurgeons remove bone from the spinal column to gain access to the nerve roots; the roots are then “cooked” with heat or laser, or are otherwise destroyed. This usually, but not always, causes the patient’s pain to stop. The procedure carries with it a risk of destroying nerve tissue in addition to the targeted tissue, plus the usual risks of open spine sur *151 gery. In addition, once the procedure is performed, there is virtually no possibility of natural nerve regrowth or of surgical attempts to restore motor function.

According to the record in this case, the first published study of the DREZ procedure appeared in a neurosurgical journal in 1979 which reported that sixty percent of DREZ patients experienced some weakness in their ipsolateral (same side) leg as a result of the procedure. In 1981, the same journal published a letter from the study’s author stating that he had been able to gain good pain relief results with fewer complications by making the DREZ lesions smaller. Modifications and refinements to the procedure to increase its efficacy and decrease its complications continued until at least 1984. In 1985, after Cleary had stopped seeing Dr. Ammerman, an article in a neurosurgery journal, reporting only a five percent complication rate, became widely available to neurosurgeons in the United States. A study published in 1988 by Cleary’s expert witness reported that fifty percent of DREZ patients were free or almost free of pain but forty-one percent had residual pain or other complications from the procedure.

II.

Cleary brought an action alleging that Dr. Ammerman negligently gave him inaccurate information about the efficacy and risks of the DREZ surgical pain relief procedure, thus inducing him to forego the procedure and causing him to endure severe pain for many years. Cleary also alleged that two other GHA physicians who treated him over three years after Dr. Ammerman treated him failed either to inform themselves about the procedure or to refer him to doctors who would know about the procedure. 1

The trial court ruled that although Cleary had presented expert testimony to establish GHA’s duties and to establish the standards of care, Cleary was also required to present expert testimony that GHA’s acts or omissions breached the standards of care. Cleary concedes that his is not an informed consent case, and he concedes that he did not present expert testimony on breach. However, he maintains that no expert testimony on breach is required because the principles of the informed consent doctrine should apply where the alleged negligence is a physician’s failure to provide completely accurate information about treatment options he discusses with a patient, even when the physician is not proposing or recommending the particular treatment. Cleary also contends that he is not required to present expert testimony that, under the circumstances of his case, the GHA physicians other than Dr. Ammerman breached their duty to be familiar with treatment options for Cleary or to refer him to another physician who was familiar with the options.

As we have said, we agree with the trial court that informed consent principles do not apply in this case; that expert testimony was required to establish that the information given to Cleary by Dr. Ammerman was so inaccurate as to constitute a breach of the standard of care; and that expert testimony was required to show that the actions of the two GHA physicians, who later saw Cleary only sporadically, breached the standard of care. Therefore, we affirm.

III. Alleged Negligence of Dr. Ammerman

Cleary first sought information from Dr. Ammerman about the DREZ procedure in late 1983 after a referral physician mentioned it, and he and Dr. Ammerman discussed the procedure again in January *152 1984. At no time did Dr.

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Bluebook (online)
691 A.2d 148, 1997 D.C. App. LEXIS 45, 1997 WL 136986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleary-v-group-health-association-dc-1997.